T & S

[2001] FamCA 1147

FAMILY LAW ACT 1975

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA NA 47 OF 2000
AT BRISBANE No BR11828 of 1998

BETWEEN

"T"

APPELLANT MOTHER

AND

"S"

RESPONDENT FATHER

REASONS FOR JUDGMENT OF THE FULL COURT
EDITED FOR ANONYMITY

CORAM: Nicholson CJ, Ellis and Mullane JJ
DATES OF HEARING: 29 and 30 May 2001

DATE OF JUDGMENT: 29 October 2001

APPEARANCES:

Mr North of Senior Counsel instructed by the Women's Legal Service Inc. 387 Ipswich Road, Annerley Queensland 4103 appeared on behalf of the Mother.

Mr Slack of Counsel, instructed by Clewett Corser & Drummond, Solicitors, PO Box 204 Toowoomba Queensland 4350 appeared on behalf of the Father.

Name of Appeal:                 T and S
Appeal Number:                 NA 47 of 2000
Date of Appeal Hearing:    29 and 30 May 2001
Date of Judgment:             29 October 2001
Coram:  Nicholson CJ, Ellis and Mullane JJ

Catchwords: Family Law - Appeal against parenting orders - Powers and discretion of Full Court - Application by Appellant Mother for leave to adduce further evidence - Alleged family violence by Father against Mother - Application granted.

Family Law - Practice and Procedure - Hearing - Whether Appellant Mother received a fair trial - Duties of the trial Judge and Child Representative where domestic violence victimisation is alleged by a litigant in person.

This was an appeal by the Mother ("Ms T") against orders made by Buckley J on 11 August 2000 in respect of the parties' cross‑applications for residence, contact and specific issues concerning the one child of the relationship, ("M"), a boy aged approximately 2 years at the time of his Honour's orders. The effect of his Honour's orders was that:

Both parents are to be jointly responsible for the long term care, welfare and development of the child;
The Father is to have residence of the child and to be responsible for the child's day to day care, welfare and development;
The Mother is to have specified contact with the child.

The trial hearing occupied six sitting days. The Father ("Mr. S") and the Child Representative were represented by Counsel throughout. The Mother was not represented during the first five days. At the conclusion of those five days, the hearing was adjourned for a period of approximately five weeks. On the resumed hearing, the Mother was represented by Counsel. Before the Full Court, she was represented by Senior Counsel.

A claim by the Mother of domestic violence at the hands of the Father was raised to some extent before the trial Judge however his Honour did not accept her evidence and found much of her affidavit evidence inadmissible. The case against the Mother that his Honour eventually accepted was:

That she had always led an erratic lifestyle
That she had been ambivalent about her emotional attachment to the child from the time of his birth
That she suffered what a local doctor ("Dr RS") described as a histrionic personality disorder which was debilitating and pervasive and substantially impaired her capacity to attend to all of the child’s needs
That she was prone to exaggerate and give lurid accounts of events as well as being impulsive and unpredictable
That as a result her allegations about being a victim of domestic violence should be discounted, particularly as these accounts were contradictory and different at various times
That her behaviour in returning to the town of "G" to resume cohabitation with the Father was inconsistent with her expressed fear of her life in being in "G".

A major ground of appeal advanced on the Mother's behalf was that she did not receive a fair trial and that a new trial should be ordered. The gravamen of the Mother's case as it was formulated before the Full Court was that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence thereof and because, on his Honour's view, the Mother suffered from a personality disorder it was submitted on her behalf that his Honour was thus led into making negative findings against her, and in particular against her credibility.

The Mother's appeal also contended that the Child Representative had failed in his duty to place the issues of domestic violence clearly before the Court and that the trial Judge had erred by failing to further inquire into the issue of domestic violence.

Before the Full Court, the Mother sought leave to adduce further evidence pursuant to the provisions of s93A(2) of the Family Law Act 1975. Such evidence consisted of affidavits sworn by the Mother and other witnesses that had appeared at the trial hearing. The mother also sought to rely on affidavits from a social worker and from a psychologist, neither of whom had given evidence at trial. Their affidavits addressed matters of family violence and its impact both generally and upon the appellant in particular.

Held: (per curium) Granting leave to the appellant to adduce further evidence, allowing the appeal, remitting the matter for rehearing and granting liberty for the parties to file for submissions as to the costs of the appeal

The majority judgment of the High Court in CDJ v VAJ (1998) FLC ¶92-828 held inter alia that the principle that the child’s interests are paramount is clearly relevant to the question as to whether further evidence should be admitted because the Full Court is eventually bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that in exercising its discretion whether to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order. The majority judgment also referred to the Full Court considering whether the further evidence is credible and whether it was available at the time of trial.

Applying the principles of CDJ v VAJ to the present case, the Full Court was satisfied that the further evidence as to domestic violence was credible and that, if accepted, it would have produced a different result if it had been available at trial. Given the background to the matter and the difficulties under which the Mother laboured at trial, the Full Court was of the view that it would be unreasonable to give any significance to the fact that most if not all of the evidence would have been available at trial.

The Full Court did not accept the argument that it was part of the duty of the Child Representative to investigate and present the case for one of the parties. To have done so in the present case would have compromised is neutrality.

The trial Judge had conducted a difficult trial with fairness and competence: Re F : Litigant in person guidelines (2001) FLC ¶93-072 referred to . In respect of his alleged failure to further inquire into the issue of domestic violence, the Full Court noted that proceedings involving the welfare of children are not strictly adversary in the usual sense (In re P (a child); Separate Representative (1993) FLC ¶92-376 referred to) but observed that the Court and its procedures are not equipped to conduct the inquisitorial proceedings which would have been required of his Honour if this criticism was to be accepted.

Additional Reasons for Judgment by Nicholson CJ

The case highlights a serious problem affecting the administration of justice in family law proceedings and the fact that, as also occurs on occasion in the area of criminal law, women who have suffered serious domestic violence may be unable to present their cases unaided in family law proceedings: The Queen v Robyn Bella Kina (29 November 1993, sourced from Butterworths On Line, BC 9303391) referred to. The present legal aid system does not appear to be able to cope with these problems. It is not possible for the Court to provide a “level playing field” in cases such as this to self represented persons and the issue of providing procedural fairness creates great difficulties.

The denial of legal aid in the circumstances seen in the present case appears to infringe the practical enjoyment of rights which are meant to be assured under both the Convention on the Elimination of Discrimination Against Women 1981 (CEDAW) and the Declaration on the Rights of Disabled Persons 1975 (DRDP): Articles 2, 15, and 16 of CEDAW referred to; Article 11 DRDP referred to.

Reportable

NICHOLSON CJ, ELLIS and MULLANE JJ

INTRODUCTION

By an Amended Notice of Appeal filed 14 May 2001, Ms T ["the Mother"] appeals from orders made by Buckley J on 11 August 2000 under the Family Law Act 1975 (Cth) ["the Act] in respect of the parties' cross‑applications for residence, contact and specific issues in respect of the one child of the relationship, M [who was aged approximately 2 years at the time of the orders].
The hearing occupied six sitting days. Mr S ["the Father"] and the Child Representative were represented by Counsel throughout. The Mother was not represented during the first five days. At the conclusion of those five days, the hearing was adjourned for a period of approximately five weeks. On the resumed hearing, the Mother was represented by Counsel. Before us, she was represented by Senior Counsel.
The effect of his Honour's orders was:

Both parents are to be jointly responsible for the long term care, welfare and development of the child;
The Father is to have residence of the child and to be responsible for the child's day to day care, welfare and development;
The Mother is to have specified contact with the child.

Buckley J also dismissed an application by the Mother that the Father pay the travel expenses of her brother.
The Mother appeals from the whole of the orders made by Buckley J and seeks the following orders from this Court:
"1. The applications for residence and other orders be remitted for retrial.
2.Such further or other order including such order as to costs as to the Court may seem just."
For present purposes it suffices to say generally that a major ground advanced on the Mother's behalf is that she did not receive a fair trial and that a new trial should be ordered. Intrinsic to the basis of this complaint is that the Mother is a survivor of domestic violence at the hands of the Father, that she was unable to present her case including matters of domestic violence as a litigant in person and that as a consequence the trial Judge could not have made a determination which was in the best interests of the child. The Mother made an application to adduce further evidence at the hearing of the appeal pursuant to the provisions of s93A(2) of the Act.

THE APPEAL PROCEEDINGS

On 18 June 2001, having regard to the nature of the argument that was before us, the Associate to the Chief Justice wrote to the parties' solicitors in the following terms:
"I write at the request of his Honour, the Chief Justice and enclose a copy of the Full Court's recent judgment Re F: Litigants in Person Guidelines published 4 June 2001.
You are invited to make any written submissions concerning the application of the judgment in Re F to the present appeal by no later than 5pm on Monday 2 July 2001. Submissions should be forwarded to the Regional Appeals Registrar, Ms Susan Coutts at the Brisbane Registry with a copy to the other party."
Submissions were in fact filed by both parties and form part of the Court record.

BACKGROUND

The Father was born [in] … 1966 and the Mother [in] … 1970. They commenced a relationship in … 1993 and lived together thereafter for various periods. His Honour found (at AB 14 -15):
"The living circumstances for M since his birth have been as follows:
(i)from his birth until 17 October 1998, he resided with his Father and Mother … [in the town of ] G;
(ii)between 17 October 1998 and December 1998, he resided in Brisbane with his Mother;
(iii)between December 1998 and January 1999, he resided with his Mother in G;
(iv)between January 1999 and 29 April 1999, he resided with his Mother and Father [in] … G;
(v)between 29 April 1999 and 2 June 1999, he resided with his Mother at her parents’ home at B in New South Wales;
(vi)between 2 June 1999 and 15 July 1999, he resided at various times with his (sic) and at various times with his Mother in G;
(vii)from 15 July 1999 until the present time, save for periods of contact with his Mother, M has resided with his Father and the Father’s family [in] … G."

10. The procedural history of the proceedings was set out by the trial Judge as follows (at AB 15-17).

"2. HISTORY OF PROCEEDINGS

On 16 November 1998, the Father filed an application seeking residence of M in the Family Court at Brisbane.
The application was adjourned on 11 January 1999;
On 24 May 1999, interim orders were made by consent that the Father, upon his undertaking that he would ‘return the child M …, to the Mother following any period of contact’, have contact with the child. The Mother gave an undertaking that ‘until the matter is considered by the Court again or otherwise agreed between the parties that’ she would ‘live with the child, M, at the residence of [the Mother's parents] in the B area [of New South Wales]’.
On 15 July 1999, a temporary care and protection order was made in the Children’s Court at [the town of ] T and the child was placed by the Department of Family Youth and Community Care into the care of the Father.
On 23 August 1999 in the Family Court, Registrar Wilkie made interim orders which provided for M to live with the Father and have contact with his Mother.
On 1 November 1999, Registrar Wilkie made further interim orders which were expressed to be residence/residence orders and provided inter alia:
1.That in the event that the Mother resided in G in the State of Queensland:
(a)that the child, M, … reside with the Father and that he be responsible for the day to day care welfare and development of the said child;
(b)that the said child reside with the Mother from 3.00pm Monday to 3.00pm Wednesday each week commencing Monday 15 November 1999 and from 3.00pm Friday to 3.00pm Sunday each alternate weekend commencing Friday 12 November 1999;
(c)that in the event that the Mother elects not to reside in G then the said child reside with the Mother each fourth week from 2.00pm Friday to 2.00pm the following Friday commencing Friday 26 November 1999.

On 31 January 2000, when the matter was listed for trial, Justice Jerrard varied the Orders made by Registrar Wilkie in respect of contact and adjourned the final hearing of the matter until 27 March 2000.
The final hearing of the applications was heard before me on 27, 28, 29, 30 and 31 March 2000 and on 5 May 2000. Counsel for the parties agreed to provide me with their submissions in writing. Written submissions on behalf of the Child Representative were received from Mr Bourke of Counsel on 12 May 2000. Those submissions were subsequently amended on 15 May 2000 and 31 May 2000. Written submissions on behalf of the Mother were received from Ms Forbes of Counsel on 19 May 2000 and a subsequent addendum was received on 29 May 2000. Written submissions on behalf of the Father were received from Mr Slack of Counsel on 26 May 2000.
The precise orders sought by the Father and by the Mother are attached to their respective written submissions.
At the conclusion of the trial, Ms Forbes of Counsel made an oral application in respect of the costs associated with the attendance of the Mother’s brother, Mr KT, at the trial. An affidavit in support of that application was filed on 24 May 2000.
On 5 May 2000 the following orders were made prescribing when M would live with the Mother at B pending the delivery of the judgment in this matter.
6.That pending judgment in this matter the child, M, live with the MOTHER at B in the state of New South Wales on the following occasions:
(a) 13 May - 20 May 2000;
(b) 10 June - 17 June 2000;
(c) 8 July – 15 July 2000;
(d) 5 August - 19 August 2000;
(e) 9 September - 16 September 2000;
(f) 14 October - 21 October 2000;
(g) 18 November - 25 November 2000;
and in the same pattern thereafter.
7.That all residency changeover take place at 12 noon at McCafferty's Depot [in the town] of T."

THE PARTIES' CIRCUMSTANCES AT TRIAL

11. The Father's home circumstances involved the child being cared for by the Father in the home of his parents with the assistance of his parents Mr JS and Mrs ES and his niece Ms A. Ms A has lived with the Father's family since July 1999 when the child M was placed in the Father's care by the Department of Families Youth and Community Care. The Father was working in the family's bakery business. The trial Judge accepted medical evidence from Dr RS (a General Practitioner who has practised at the … Medical Centre [in the town of G], for a period of 11 years) that although the Father suffers from gout, there is no aspect of the Father's health which would interfere with his ability to care for M.

12. Ms A was found to have been the primary carer for the child during daylight hours from July 1999 to December 1999 and thereafter the Father cared for the child in the afternoons. Ms A gave evidence that she would not be available to care for the child "full time" after July 2000.

13. The Mother was living with her parents Mr CT and Mrs FT at B where they had purchased a three bedroom house property in August 1999 specifically for the purpose of accommodating the Mother and M. The Mother was not in paid employment. His Honour found that the Mother's parents' home provides appropriate accommodation to meet the needs of the Mother and M.

PROPOSALS FOR FUTURE CARE BEFORE THE TRIAL JUDGE

14. The Father proposed that the current care arrangements at his parents' home would continue. The Mother's proposal was that she reside in her parent's home, at B and that she care for M on a full-time basis in the immediate future with the assistance of her parents. His Honour also commented:

"Should the Mother be unsuccessful, her evidence as to whether she would reside in G, or remain residing with her parents, is unclear, and her detailed evidence in this regard was often inconsistent. I note that her father gave evidence that she is paying rent on a room in G, pending the outcome of these proceedings. Should her application for residence be successful, it is unclear as to whether she proposes to resume her employment either as a hairdresser or in any other capacity, in the medium to longer term, as her evidence in this regard was vague and uncertain.

Mrs FT gave evidence that, although the Mother is not qualified as a hairdresser, she had passed all of the relevant examinations and was only some weeks short of completing her indentured term as an apprentice. (AB 21)

LEGAL PRINCIPLES

15. His Honour set out the relevant provisions of the Act in relation to children (s60B(1) and (2), s61C, s65E, and s68F).

16. The Mother’s Outline of Argument at paragraph 3 appears to submit that particular emphasis should be placed on s68F(2)(g) [the need to protect the child from physical or psychological harm] and s68K [to consider risk of family violence], the latter being a provision not discussed in the trial Judge’s reasons for judgment. This was no doubt because of his Honour’s finding that no family violence had occurred, so far as the Father was concerned.

EVIDENCE AND FINDINGS

17. In addition to the evidence adduced by the parties and the Child Representative, the trial Judge had before him a Family Report dated 19 August 1999 and an updated Report dated 28 January 2000, both prepared by Mr IG, a psychologist.

18. In the course of his reasons, his Honour, inter alia, made the following findings as to a number of disputed issues of fact:-

M Being Taken Into Care by the Department of Families Youth and Community Care on 15 July 2000

19. The trial Judge found that the relevant Departmental officers as well as Dr RS and Constable J acted in good faith and were genuinely concerned to protect M from the potential of being harmed while in his Mother's care. Of this, his Honour commented:

“However, although the actual investigation of the allegations concerning M being at risk in his Mother's care had to be by its very nature undertaken expeditiously, it is difficult to understand, given the relatively small size of the community in which all relevant parties lived, as to why direct evidence was not sought from the actual personnel alleged to have made the statements of concern.”

The Altercation at the S Family Residence on 5 July 1999

20. In relation to this incident, his Honour preferred the evidence of Ms A to that of the Mother and Mr JS. He found that the Mother appeared to become upset when she observed that a bedroom had been renovated to accommodate M. He further found that Ms A intervened when she observed the Mother assault the grandfather Mr JS and that she was involved in a scuffle with the Mother with each of them pulling the hair of the other. The Mother's evidence concerning the assault allegedly perpetrated against her was not accepted. His Honour found that the injuries which were sustained and which were observed and treated by Dr RS were totally inconsistent with the Mother's version of the events. He also found Mr JS's conduct, including the statements which he directed to the Mother, to be both intimidating and provocative.

The Mother's Mental Health

21. Dr RS of the … Medical Centre [in the town of G] gave evidence on behalf of the Father. She was consulted by the Mother on the following dates: 26 August 1998, 28 August 1998, 23 September 1998 and 2 October 1998. The Mother was seen by Dr D from the same practice on 24 August 1998, 7 September 1998 and 28 September 1998. Dr RS's next consultation with the Mother was on 18 June 1999, and thereafter on 5 July 1999, 8 July 1999, and then on 2 and 3 February 2000. Dr RS diagnosed the Mother as suffering from a histrionic personality disorder. His Honour said of Dr RS:

"She is a General Practitioner who has practised at the G Medical Centre, for a period of 11 years. She graduated in 1986 from the University of Queensland with a Bachelor of Medicine and a Bachelor of Surgery with First Class Honours. She obtained a Fellowship from the Royal Australian College of General Practitioners in 1995 and a Fellowship from the Australian College of Rural and Remote Medicine in 1999. She estimated that patients requiring psychiatric assistance would constitute approximately 20% of her current practice. She was consulted by the Mother on the following dates: 26 August 1998, 28 August 1998, 23 September 1998, 2 October 1998. The Mother was seen by Dr D from the same practice on 24 August 1998, 7 September 1998 and 28 September 1998. Dr RS's next consultation with the Mother was on 18 June 1999, and thereafter on 5 July 1999, 8 July 1999, and then on 2 and 3 February 2000. Dr RS diagnosed the Mother as suffering from a histrionic personality disorder.
Her evidence in respect of this issue was as follows.

The features of histrionic personality disorder – histrionic means hysterical. It means dramatic. It means theatrical. It means that these people are- and I think Ms T is like this - has an incredibly low self esteem, and attention-seeking behaviour is dramatic and is the way of achieving attention and trying to bolster their own self esteem. The thing that makes it a disorder versus a personality trait is that it is maladaptive; it is dysfunctional. There is social chaos, and that the behaviour is stage taking. It takes precedence over whatever else might be going on. I mean, we might have a surgery that is packed, and Ms T has come in highly agitated and distressed, and needing someone to talk to, but at the cost of people who also need medical help, in a situation where there is - where we have - we're an area of need, and we are very limited in our resources. And it is just that it is very much those sorts of theatrical dramatic exaggerated threats of suicide, para-suicide attempts which are things where we are not really intending to be suicidal, but gestures are made which are to everyone, including ourselves, have to be taken seriously, although we realise that there is a real possibility that these are not serious attempts, and when you try to fix the cause or address the issue, there is avoidant behaviour. You can't follow up. So that there is a difficulty in accessing and fixing the problem. And it is also characteristic of personality disorders like this, is that there is no insight. The patient's believe - and I think she genuinely believes that it is an unjust world out there, that these terrible things are being done, and she is distressed - there is no doubt about that, but we just can't - but there is no access given, because there is no acknowledgment that this problem is in any way an internal problem; it is seen as an external problem; that it is the world, that it is the people around her. It is everyone - everything else that is at fault, and it makes it extremely difficult to address.

So far as the appointment on 2 February 2000 was concerned, she received a call from her surgery advising her that the Mother was present and required an appointment. Dr RS described the consultation as "a dramatic presentation - there was the usual excessive allegations combined with stated love for [the Father] and the desire to have more children". The following day she received a call from the Father advising her that the Mother had informed him that she had taken an excess of tablets, and that, to use his words, "she was going to finish it off". She had a discussion with the Psychiatric Registrar at the Acute Psychiatric Unit in T and following that discussion, she decided to regulate her pursuant to the provisions of the relevant State Legislation. She consulted the Mother at the hospital.
Dr RS observed:

She was lucid; she was aware; she was not sedated. There was no evidence of overdose at that stage. She then absconded and couldn't be restrained by the nursing staff.

She gave evidence that the physical care of M by the Mother "was fine". She described M as "thriving", and as "being bigger than normal". When questioned by the Child's Representative as to the impact upon M if he were to reside with the Mother of the various characteristics which she had ascribed to the Mother, she said:

To what extent will these characteristics she exhibits impact upon him? - I think - I think it will be in a very major way. I – it's even just - I think Ms T can - can care for M in an environment that is controlled but the environment keeps changing. There's the movement, the shifts, the going back to situation which are - are really difficult for her where there's been crisis and she migrates back to it. I mean, there's - and I can't see that really changing. I think that it's going to be a bit pillar to post. I think there will be instability and I'm concerned that - that the focus of - I think Ms T exteriorises all her problems. At the moment that's with other adults. When M is 10, 12, 14 it may be M and I don't - I mean, I think that is a realistic concern and it would be - if there was a way of actually ensuring control over the situation you could rest a bit more happily with that.

Furthermore, she considered that the long term effect upon M, may be as follows.

So that if he was to live in a - reside with Ms T, that she continue to exhibit these traits in issue --- ? --- Yes.

--- there is a good chance, is there, that M may well adopt them, being histrionic himself? -- It's actually - I think it's about a tenth as common in males as females. The - it's more likely - I mean if he was going to develop personality problems I would say it may well be in the anti-social spectrum but not - it's not all that likely to be histrionic though some of the behaviours could be mimicked and become - become part of the behavioural repertoire. Yes.

Would that be the position whether Ms T was in a stable environment or still moving from place to place and crisis to crisis? --- It would be much less likely if she was in a stable environment.

Dr RS concluded that the Mother was unlikely to be receptive to any therapy or treatment."

22. At AB 30, his Honour also recorded that:

“In addition to Dr RS, a number of health care professionals who gave evidence about their contact with the Mother raised concerns about her presentation and features of her personality. The concerns expressed by them about the Mother's presentation are consistent, and accord with Dr RS's concerns.

A number of witnesses testified as to the Mother's behaviour and presentation; and her ambivalence about her emotional attachment to M; her expressing an inability to cope with his care; and an ambivalence about wanting to care for him.”

23. Dr V, a psychiatrist, gave evidence before his Honour on behalf of the Mother. He was consulted by her on 20 August 1999 and on 11 February 2000. Prior to his giving evidence, he had been supplied with a copy of the clinical notes from the G Medical Practice, as well as with a copy of the transcript of Dr RS’s evidence in these proceedings. He gave evidence that although he suspects that it is possible to conclude that the Mother may have some histrionic traits, these are different from a personality disorder. He gave further evidence as follows:-

“Dr RS appears to have observed some behaviour difficulties in Miss T, but I suspect that those problems were a response to possibly a highly stressful situation she encountered in G, your Honour.” (AB 28)

24. His Honour noted that Dr V had:

“relied upon a report given by Dr W and the history provided by the Mother and her sister as the factual bases upon which he asserted that there was no previous manifestation of the Mother exhibiting the personality traits observed by Dr RS and others outside of the G environment.” (AB 29)

25. Further, the trial Judge found that Dr V:

“did not agree with Dr RS’s conclusion that the Mother had a histrionic personality disorder. Dr V conceded that the Mother had the personality traits that put her within the spectrum of the disorder. He did not agree with the diagnosis principally because he would have expected to have seen some evidence of a deviation of her personality throughout her life. Indeed Dr V agreed that if there had been a history of the personality traits observed and described by Dr RS, then he would have conceded that she had a histrionic personality disorder.” (AB 36)

26. The trial Judge concluded that he accepted Dr RS’s evidence as to the Mother having histrionic personality traits and did not accept Dr V’s evidence that the manifestations of the Mother’s personality traits were limited to her experiencing and responding to stress associated with the G environment (AB 37). His Honour found himself satisfied that “the Mother’s condition is debilitating and pervasive and substantially impairs her capacity to attend to all of M’s needs.” (AB 38).

27. In arriving at this conclusion, the trial Judge also had regard to the evidence of Mr IG, the psychologist who prepared the Family Report, which he summarised as follows:

“He found the Mother to be histrionic, prone to exaggerate as well as being impulsive and unpredictable. In his view, if M was to be exposed to these types of behaviour, that it did not auger well for providing stability in his life which he considered to be of considerable importance to this child.” (AB 30)

28. His Honour also took note of evidence of Dr W who treated the mother between 1995 and 1999 at B. His Honour recorded that Dr W:

“testified that he would not be surprised that another Doctor had diagnosed the Mother with a Histrionic Personality Disorder. Furthermore, he stated that he had observed the Mother to overstate and exaggerate her symptoms in a personal injuries compensation claim.” (AB 36)

29. His Honour was further satisfied that:

“In 1995, Dr T at the G Medical Centre, noted that the Mother was “histrionic” and added “inconsistent diagnosis”.” (AB 36)

The Mother’s Care of the Child

30. Dr RS described M as "thriving", and as "being bigger than normal" but was concerned about the impact of the Mother’s mental health upon the child (AB 27-28). In this regard his Honour described the Mother's behaviour as "erratic and irrational" (AB 33) and recorded that:

“A number of witnesses testified as to the Mother's behaviour and presentation; and her ambivalence about her emotional attachment to M; her expressing an inability to cope with his care; and an ambivalence about wanting to care for him.” (AB 30; see examples at AB 31- 36)

The Mother’s Claim to Have Been in “fear of her life”

31. His Honour did not find the Mother's alleged fear to be genuine. His Honour said:

“Despite the Mother's evidence that she left [the town of ] G on 16 October in fear of her life she returned to G in December 1998 and resumed cohabitation with the Father in January of 1999. They cohabited until 29 April 1999.” (AB 32)
“The Mother left G 'in fear of her life' on 29 April 1999. She established herself with her parents at B. She only remained with them for five weeks from 29 April 1999 until 2 June 1999. In proceedings in this Court on 24 May 1999, she told the Court that she was intending to remain living with her parents and gave an undertaking to the Court that she would continue to do that. Despite her undertaking, the fact that she was settled with her parents and away from the influences of G; the fact that she was only having contact with the Father on a fortnightly basis and that she was 'in fear of her life', she returned to G within 8 days of the Orders being made in this Court.” (AB 33)

The Family Report Writer's Recommendations

32. His Honour said of Mr IG's evidence:

“In summary, although he considered the respective cases of the parties to be finely balanced, he considered that as at the end of January that the safest option was to leave the child with the Father. However, in this regard, he said the following questions would need to be addressed: What would the impact on M be if the Father were to move out of his parent's home? What would the impact be if he started to co-habit with another person? What would the impact be if, for some reason, Mrs ES were not in the picture? He was of the view that the Father could not cope with the care of M, if he was to live by himself with him.
So far as the Father was concerned, he found him at times to be less than tactful. He further found that he had difficulty in exercising control with his temperament. He found that M has a reasonably robust temperament, with the capacity to adapt to the various situations with which he was confronted living in either household.
Mr IG has various concerns concerning the Mother's compliance with any contact regime that may be put in place by way of court orders.
I accept Mr IG's evidence in respect of the above matters.” (AB 41)

THE TRIAL JUDGE'S SECTION 68F(2) ANALYSIS

33. The trial Judge was of the view that, on the facts of this case, in determining what was in the best interests of the child, he should have particular regard to the provisions of paragraphs (b), (c), (e), (g), (h), (i), (j) and (k) of s68F(2). He thereafter made findings under each paragraph which we would summarise as follows:

(b & h) M's relationship with his parents and each parent's attitude to the child and their response to parenthood

34. He found that both the Father and the Mother are very fond of and attached to M.

35. His Honour accepted Mr IG's evidence that M does not have a particular attachment to any of his four principal caregivers in the Father's household.

36. His Honour was satisfied that the Father is genuinely concerned that should M be placed in the Mother's care, that the child’s welfare will be endangered by what the Father regards as her erratic and unstable lifestyle.

37. His Honour was satisfied that in general terms, the members of the S family were anxious to portray a greater involvement by the Father in all aspects of M's life than he actually undertakes.

38. His Honour was satisfied that the Father’s actual care of M has not involved any significant changes to the lifestyle he enjoyed prior to M commencing to live with him in July 1999.

39. His Honour was satisfied that Mrs ES has been primarily responsible for undertaking all physical tasks associated with managing the S family household in general and M in particular.

40. His Honour was satisfied that from July 1999 to December 1999 Ms A was primarily responsible for M's care during daylight hours on weekdays and that from December 1999 until July 2000 she received some assistance from the Father during the afternoon when she was employed in her mother's shop.

41. His Honour was satisfied that any decisions of significance which are required to be made regarding M's care are made by Mrs ES and that the Father defers such decisions to her.

42. His Honour accepted Mr IG's evidence that the Father would not be capable of caring for M by himself in premises other than the family home.

43. His Honour accepted the evidence of the Father as well as that of Mr JS and Mrs ES that M will continue to reside in the S family home.

44. His Honour accepted Mr IG's evidence in respect of his observations of M in the S household as outlined in his second report.

45. His Honour was satisfied that M is well cared for in the S household where his various needs are met by all members of the family on a collective basis.

46. His Honour accepted Mr IG's evidence that M has the most obvious attachment to the Mother who was M's primary caregiver from his birth until July 1999.

47. His Honour accepted Dr RS's evidence that the Mother's physical care of M has been of a high standard.

48. His Honour was satisfied that the evidence before him did not disclose that M has been at risk of physical harm while in the Mother's care.

49. His Honour accepted Dr RS's evidence while being cross-examined by the Mother as to the contents of a letter dated 2 August 1999 which she wrote to the Department of Family Youth and Community Care, namely:-

“But you just told the Court that he wasn't at any risk? ---
I think if a genuine threat arises the emotion will escalate
and M could be placed at risk, and I stand by that.” (AB 44)

50. His Honour accepted Mr IG's evidence concerning his observations of the Mother-child relationship in his second report.

51. His Honour was satisfied that the Mother's care of and involvement with M since his birth has been marked by periods of instability, erratic behaviour and an apparent ambivalence in her commitment to care for him.

52. His Honour found the Mother's parents and her sister … to be most impressive people who would use their best endeavours to ensure that M's welfare and best interests is safeguarded whilst he is in his Mother's care. However, he was satisfied that it has not been possible for any of them to influence some of the major decisions which the Mother has made which have impacted upon M's care. His Honour found:

“The Mother's parents and her sister have provided the Mother with significant assistance and support so far as her emotional and physical needs have been concerned. Despite their good intentions and their best efforts, the Mother has been either unable or incapable of providing M with a stable, consistent and secure environment in which to rear him.”

53. His Honour recorded that the Mother alleges that M was at risk of injury in the Father's household and his needs were neglected. Relying on the evidence of Dr RS, he accepted that the child presented with normal ailments or accidental injuries.

(c)Likely impact of change of residence

54. His Honour was satisfied that given the Mother's past history and despite her assertions that she intended to live with her parents at B, she was unlikely to remain with them for any significant period of time.

55. His Honour accepted Mr IG's evidence that if M was exposed to the Mother's personality traits which he observed, he was concerned that M would not be provided with the level of stability in his life which he regarded as being of the utmost importance to the child.

56. His Honour was satisfied that if the Mother were to obtain an Order for residence of M, she was likely to continue to adopt an unstable and inconsistent lifestyle which would, in time, have a negative impact upon M's welfare.

(e) Each parent's capacity to provide for M's emotional

and intellectual needs

57. His Honour found:

“I am satisfied that although the Father would earnestly attempt to meet all M's needs including his emotional and intellectual needs, his capacity to do so without the assistance of his parents is limited.”

58. However, his Honour was satisfied that M will continue to reside in the family residence with the Father's parents for the foreseeable future and, in particular, that Mrs ES has the capacity to attend to all of M's needs including his emotional and intellectual needs.

59. His Honour found that although the Mother has the capacity when focussed on aspects relating to M's welfare to provide for his needs, her lack of insight into her personality, its impact upon those close to her and the avoidance pattern of behaviour which she adopts when suggestions for assistance are proffered leads to the further finding that there will be significant periods from time to time when she will be simply unable to meet these needs.

60. His Honour accepted Dr RS's evidence that the Mother was unlikely to seek or be receptive to obtaining assistance to ameliorate some of the more destructive elements of her personality.

61. His Honour accepted Dr V's evidence that M is unlikely to mimic the Mother's behaviour. However, he also accepted Dr RS's evidence that the Mother's history of adopting an erratic and unstable lifestyle will impair his development and that as the child matures and begins to question his Mother's behaviour, there is a reasonable likelihood that their relationship will be impaired.

(g, i & j) The need to protect M from being exposed to violence between his parents and other aspects of the parent's behaviour

62. In the context of this appeal, it is appropriate to reproduce the trial Judge’s comments in their entirety:

“I accept Mr IG's evidence that there is a high likelihood of the present level of antipathy between the parties continuing. I also accept his evidence that should the current level of conflict between them continue, that there is the potential for M to become disturbed by that conflict. I accept his evidence that irrespective of any Residency Order which is eventually made that precise stipulated Contact Orders will need to be made as the parents' ability to negotiate these arrangements by themselves is limited.

Protection Orders have been made pursuant as to provisions of the Domestic Violence Act at various times. Current Orders were made against both parties on 20 January 2000.

The Mother has made numerous allegations of violence against her by the Father and by members of his family.

There is little doubt that the parties' relationship has been volatile and has been marked by many ongoing verbal exchanges between them.
I do not accept the Mother's allegations in respect of this issue. Many of her allegations were inconsistent, in that a number of inconsistent versions were adduced in respect of the same incident eg. the incident alleged to have occurred on 16 October 1998. Other allegations were either grossly exaggerated or simply untrue eg her version of the events which transpired at the S residence on 5 July 1999. In this regard, I note that, of the specific and serious allegations recorded by Dr V, that save for one allegation, they were not adduced by the Mother in either her affidavit or oral evidence.
I accept the Father's frank evidence that although there are times when he would have liked to have struck the Mother, that he, in fact, did not do so. I am satisfied that the Father does have a "short fuse" and that his conduct at times is extremely provocative. I also accept Mr CT's account of his confrontation with the Father when the Mother's parents were resident with her prior to M's birth.
I am also satisfied that the Mother's conduct to which I already have referred in the Reasons concerning her remaining in and returning to G despite her allegations that she was "in fear of her life" does not support her allegations of violence against the Father and other members of his family.
In summary, I am satisfied that she has made allegations which are inconsistent versions of the same incident, others which are simply untrue and others which are grossly exaggerated. I find that her conduct in this regard is consistent with the observations made by Dr RS concerning her conduct and her personality upon which she based her diagnosis.”

(k) The making of Orders likely to limit further proceedings

63. His Honour accepted Mr IG's evidence that the Father's family is likely to promote and facilitate the Mother's contact with M should the Father obtain an Order for the residence of M.

64. His Honour was not satisfied that the Mother has either the capacity or the desire to promote M's relationship with the Father and his family if she were to obtain an Order for residence of him.

65. His Honour was satisfied, in view of her personality and attitude towards the Father and his family, that the Mother is likely to attempt to undermine M's relationship with them.

66. His Honour was satisfied that should the Father obtain an Order for residence of M, the likelihood of future litigation between the parties will be reduced whereas should the Mother obtain such an Order, litigation concerning the enforcement of Contact Orders is likely to be extensive and there would be litigation arising from changes to the child’s living circumstances due to the Mother's personality and behaviour.

THE POSITION OF THE CHILD'S REPRESENTATIVE

67. His Honour recorded:

“The Child's Representative considers that M's best interests "would be marginally better served by residing with" the Mother for the reasons set out in Paragraphs 34 and 35 of his written submissions. I have paid careful regard to these reasons.”

THE TRIAL JUDGE’S CONCLUSION

68. His Honour concluded that it was in M's best interests that an Order be made that he live with the Father because:

“M will reside in a safe and secure environment in which all aspects of his welfare will be promoted and fostered by the members of the S family on a collective basis. I am not satisfied that were the Mother to obtain such an Order, that she has the capacity to do so.”

THE MOTHER’S APPLICATION FOR COSTS

69. The Mother sought an Order that the Father reimburse the Mother's brother for the expenses which he incurred on account of travelling to Brisbane by plane to give evidence on behalf of the Mother. He utilised frequent flyer points for his airfare and claimed the loss of a standard return economy airfare … as reimbursement.

70. The Mother, who was acting on her own behalf at that time, applied to have her brother’s evidence taken by way of a teleconference link. That application was opposed by Counsel for the Father as he wished to cross-examine the brother in person. His Honour formed the view upon the completion of Mr Slack's cross-examination that the issues pursued by him were, relatively speaking, of minimal relevance and of little moment. He was thus critical of the fact that the brother had been put to such inconvenience and expense. However, his Honour found that the submissions of the Mother did not address the matters referred to in s117 and accordingly, he dismissed her application.

AMENDED GROUNDS OF APPEAL

71. The appellant Mother relies on the following grounds of appeal:

1.As a result of the following, either in combination or severally, the appellant did not receive a fair trial and a new trial should be ordered:
(a)The circumstance that through no personal choice the appellant was unrepresented through the period of preparation for trial and until the sixth day of trial;
(b)The appellant failed to present coherent evidence of her relationship with the respondent and the domestic violence she alleges occurred throughout that relationship and in all probability was by reason of the effects of that violence (or the condition found to have been suffered by her) incapable of so doing without professional assistance;
(c)Notwithstanding that the appellant had repeatedly raised allegations of domestic violence, that issue was inadequately explored at the trial, or before and in particular insufficiently explored by the separate representative for the child;
(d)Notwithstanding that the appellant’s mental health was in issue and the subject of conflicting medical opinion, there was no or no adequate expert evaluation of the connection between the behaviour attributed to the appellant and giving rise to the medical examinations and opinions and its connection or possible connection with the alleged history of domestic violence;
(e)His Honour erred in proceeding with the trial and not requiring further evidence to be called in relation to the allegations of domestic violence, the effect of such violence on the Mother, and the implications of such matters on the wellbeing of the child or in not adjourning the trial so that such evidence could be presented or to enable further expert opinion to be obtained either by the separate representative for the child or by an expert appointed by the Court;
(f)In the course of the trial the following events occurred resulting in an absence of procedural fairness being afforded to the appellant:-
(i)His Honour erroneously informed the appellant that in relation to the admissibility of evidence and the taking of objections he could not help her;
(ii)On numerous occasions questions were asked by Counsel for the father to which proper objection could have been taken without the appellant being given any express opportunity to raise objection to the particular question;
(iii)Exhibit 24 was admitted into evidence without the appellant having been informed of her right under section 167 of the Evidence Act to request that the author be called and questioned about the previous representations contained therein;
(iv)Exhibit 25 was admitted into evidence when it was inadmissible without the author having been called or alternatively without the appellant having been informed of her right to object or alternatively without the appellant having been informed of her right to request that the author be called;
(v)Exhibit 21 described as records of Dr RS was admitted into evidence notwithstanding that it contains notations by persons other than Dr RS which notations express opinions and record representations earlier made notwithstanding that the opinions there expressed by persons other than Dr RS were inadmissible without the authors being called and notwithstanding that the exhibit was admitted into evidence without the appellant having been informed of her right to object or alternatively or her right to make a request under section 167 of the Evidence Act with respect to the opinions and representations by persons other than Dr RS there recorded;
(vi)Exhibit 44 was admitted into evidence notwithstanding that in so far as it contained opinion it was inadmissible without the authors having first been called;
(vii)His Honour required the appellant to commence cross-examination of the respondent without her first knowing what the respondent’s evidence in chief was or was to be;
(viii)The restriction imposed by His Honour on the affidavit material upon with the appellant could rely resulted in her failing to present to the Court relevant evidence then available to her and filed in Court;
(ix)His Honour erroneously excluded all of paragraph 8 of the appellant’s affidavit filed on 22 March 2000;
(x)His Honour permitted the trial to proceed without the respondent first clearly identifying the evidence in chief from each of the witnesses the respondent proposed to call;
(xi)His Honour permitted the order of cross-examination of Dr V to be altered favourably to the respondent without informing or adequately informing the appellant of her entitlement to cross-examine last and the possible advantage of so doing.

2.The likely effect on the findings made by the Trial Judge of the further evidence sought to be adduced by the appellant is such that the applications ought be remitted for rehearing.
3.His Honour erred in the exercise of his discretion in:-
(a)Placing any or such reliance as he did on:-
(i)The nurse’s notes referred to at page 31 of the record;
(ii)The opinion attributed to Dr D;
(iii)The evidence of Ms A of a telephone conversation with a person she believed to be the appellant;
(iv)The opinions of the officers of [a crisis care organisation];
(v)The opinion of Ms M;
(vi)The opinion of Dr T;
(vii)The appellant’s admission into hospital in 1996;
(viii)The evidence of Dr W referred to at page 36 of the record;

(b)In determining that the appellant suffered from a condition that was debilitating, pervasive and which substantially impaired her capacity to attend to all M’s needs;
(c)In placing such reliance as he did on the evidence of Dr RS;
(d)In his consideration of the evidence of Dr V;
(e)In finding it unlikely that the appellant would seek or be receptive to obtaining assistance to ameliorate some of the more destructive elements of her personality;
(f)In rejecting the appellant’s allegations of domestic violence and in relying on the following for so doing;
(i)The failure of the appellant to adduce oral or affidavit evidence with respect to allegations recorded by Dr V;
(ii)The appellant remaining in and returning to G despite alleging she was “in fear of her life”;

(g)In failing to give any or any appropriate weight to the primary bond that existed between M and the appellant;
(h)In failing to give any or any appropriate weight to the circumstance that M had been cared for appropriately whilst in the appellant’s care;
(i)In failing to give any or any sufficient regard to the reliance by the respondent on others to provide the substantial part of the care necessary for M whilst residing with the respondent and the inadequacy of the evidence as to the ongoing capacity of such persons to continue to do so on a permanent basis.

APPLICATION TO INTRODUCE FURTHER EVIDENCE

72. On the hearing of the Appeal, Senior Counsel for the Mother, in addition to relying upon the above grounds of appeal, sought leave to introduce further evidence pursuant to the provisions of s93A(2) of the Act.

73. The further evidence consisted of a lengthy further affidavit of the Mother sworn 14^th May 2001, and affidavits of … (the Mother’s father) sworn 11th May 2001, … (the Mother’s mother) sworn 11^th May 2001 and … (the Mother’s sister) sworn 11^th May 2001. It is to be noted that each of these witnesses swore affidavits and were cross-examined at trial. It follows and this was freely conceded by Mr North that this was material that could have been adduced before the trial Judge. In addition, he sought to rely upon an affidavit … sworn 11^th May 2001 [by] a registered psychologist who, in her therapeutic work, specifically focuses upon trauma. Her practice deals predominantly with women and children who are the victims of abuse and violence. He also sought to rely upon an affidavit by … a social worker employed at the Women’s Legal Service sworn 11 May 2001 which basically exhibited a briefing note for Counsel, including comments upon the evidence given at trial and a considerable amount of published material in relation to family violence.

74. Mr North also sought to rely upon an affidavit of Mr FP sworn 25^th January 2000 and an affidavit of Ms AML sworn 11^th May 2001. The latter affidavit exhibits a statutory declaration sworn by one Mr SWH concerning an alleged approach that was made to him to assault Mr FP on behalf of the Father in order to frighten him from giving evidence in the proceedings.

THE LAW GOVERNING THE ADMISSION OF FURTHER EVIDENCE

75. The principles in relation to the admission of further evidence were most recently considered by the High Court of Australia in CDJ v VAJ (1998) FLC ¶92-828 at 85,427.

76. In that matter the majority of the Court, (McHugh, Gummow and Callinnan JJ) pointed out that while an order admitting or rejecting further evidence is not a parenting order within the terms of section 64B and does not therefore directly invite the application of the principle that the child’s interests are paramount, that principle is clearly relevant to the question as to whether further evidence should be admitted because the Full Court is eventually bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that in exercising its discretion whether to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.

77. Their Honours observed that in contrast to the common law position, s 93A(2) confers upon the Full Court of the Family Court an express power to receive further evidence and the question of the circumstances in which the Full Court should exercise its discretion to receive further evidence is to be determined as a matter of statutory construction.

78. The majority said:

“102: That matter should not be approached as if the common law procedures which gave rise to the principles laid down in such authorities as Wollongong Corporation conclusively indicate the proper construction of the statutory provision.
103: The common law procedures were interlocutory in nature in the sense that they were directed to the issue whether there should be an order for a new trial. They involved the exercise of original jurisdiction. In contrast, the statutory appeal is directed to whether the orders made below should be set aside and, if so, what orders should be made in their place to determine the outcome of the litigation. An order for a retrial is one, but not the only, order that the appellate court may make. Moreover, such an order is an order of last resort.

104: In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the proceeding is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those state in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.

…

109: One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.”

79. They stressed that, by contrast with an appellate jurisdiction in the strict sense, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of the hearing of the appeal. Their Honours concluded on this point at paragraph 111:

“The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”

80. At paragraph 115 their Honours commented:

“Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.”

81. They then said:

"116: “The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.”

82. Their Honours further commented in paragraph 119:

"119. Furthermore, the operation of s.65D, which contemplates subsequent
applications, has to be taken into account:
(1)In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal."

83. Their Honours went on to advert to the need for caution in exercising the discretion to admit further evidence and to the fact that the advantages to a trial judge of seeing and hearing the witnesses on issues of credibility and the like are:

“likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice and often neither would be ideal.”

84. Their Honours also referred to the need for caution when an order for a change in the residence of children is being made and the unsatisfactory aspect of frequent displacement of children.

85. Subsequently, in Allesch v Maunz (2000) FLC ¶93-033, Gaudron, McHugh, Gummow and Hayne JJ in a joint judgment held that an appeal to the Full Court under s 94(1) is an appeal by way of re hearing and went on to say:

“30.Although, on an appeal by way of rehearing from a discretionary judgment, an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so. It may, instead, set aside the order under appeal and remit the matter for rehearing or, in terms of s 94(2) of the Act “order a rehearing, on such terms and conditions, if any, as it considers appropriate”. And where circumstances have, or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question.

86. The present application must therefore be decided in accordance with the above principles. However, it is necessary to consider the circumstances and background to the case in more detail before determining this issue.

EXAMINATION OF THE TRIAL TRANSCRIPT

87. The case itself is in our view an example of the difficulties faced by an unrepresented party in dealing with complex litigation. A reading of the transcript of the first morning of the trial is instructive in this regard.

88. On that morning, Counsel for the Father referred to his client’s document filed under case management guidelines outlining his case and to three further affidavits upon which he sought leave to rely.

89. The Mother said that she had only received the documents at 9.40 a.m. that morning.

90. His Honour then pointed to the fact that the Mother was entitled under Order 30 of the Family Law Rules to one affidavit by herself and one from each of her witnesses and adjourned to give each party the opportunity to redraw the list of documents in compliance with the Rules.

91. Discussion then ensued between his Honour and the Mother over which of her affidavits she proposed relying upon, that of 28 July 1999 or 22 March 2000. She indicated that she wished to rely upon the latter.

92. His Honour then gave directions for the preparation of a trial plan upon the basis that the plan was to contemplate the case being concluded by 4.15 p.m on the following Friday, the case having started on a Monday. His Honour indicated that he expected the Mother to estimate for how long she would cross-examine each of the other parties' witnesses.

93. In her further affidavit that she sought to have received in these proceedings, the Mother said that she was confused and did not fully understand what was occurring at this stage. We can fully understand why this would be so and we say this without criticism of his Honour.

94. The concepts and issues under discussion would be well understood by experienced lawyers but must seem incomprehensible to a lay person. His Honour did his best to explain the matter to her but appeared to feel constrained about offering her too much assistance. At the time, the decision of this Court in Re F : Litigant in person guidelines (2001) FLC ¶93-072 had not been delivered and it may be that, if his Honour had had the advantage of access to the principles set out in that decision, he may have exercised his discretion to offer greater assistance to the Mother than he in fact did. However that may be, we consider that the difficulties that faced the Mother at that stage were apparent and very real.

95. The Mother had filed a number of affidavits and was forced to choose one for reasons that may not have been readily apparent to her. She was being called upon to look at additional evidential material produced by the Father at the last minute. She was also being called upon to estimate the length of time that she would take in cross-examining witnesses, a task that experienced Counsel find difficult.

96. We draw attention to these matters not to criticise the trial Judge or the procedures employed but to further highlight, as the Full Court said in Re F (supra), the difficulties involved in providing procedural fairness to self-represented persons.

97. Following the luncheon adjournment, a series of objections were taken by Counsel for the Father to the affidavit material relied upon by the Mother. The Mother had filed as part of her affidavit a chronology and the trial judge pointed out to her that there were some portions of it which were admissible but that there were many portions of it which were not because they contained assertions in relation to what other people had said. His Honour pointed out that if the Mother wished to rely upon that sort of material then affidavits would have to be filed from those persons.

98. After hearing further argument his Honour said:

“Ms T, you are entitled to cross-examine the father in respect of most of these matters where you have made these allegations. It is very difficult, and I don’t want to keep saying this all week where a party is acting for themselves, because you are not being criticised for that, but these are very technical difficulties and my function is, to use a colloquial expression, is to attempt to maintain a level playing field without getting so involved that I commence proffering advice to you, which I can’t do as I have explained to you.
But there is much of this which is clearly inadmissible. There are some parts of it which are admissible. It may be, and this is not being imposed upon you, the best course would be – I don’t - either to give you the opportunity to re-do it overnight on the basis that it is to be confined strictly to matters relating to you and to M.
It is not possible to make assertions involving other people in this form, and it is not possible to rely upon evidence that should be adduced by some of the parties upon – some of the witnesses upon whom you have already relied, or others from whom you haven’t provided affidavits. It’s either we adopt that course or we go through this paragraph by paragraph which I would not suggest would be a useful exercise in terms of the time that would be expended. What would you like to do?”

99. The Mother then accepted his Honour’s suggestion and said that she would attempt to prepare a document by the following morning.

The Mother's affidavit contained a series of annexures which were also objected to by Counsel for the Father and all of which were then struck out.

The issue of the Mother’s affidavit was eventually resolved by his Honour agreeing to accept her chronology as an aide memoir and by her agreeing to put the various matters contained therein that the Judge considered to be inadmissible as part of her cross-examination. This she largely failed to do.

After considerable discussion of procedural matters, the Father was called by his Counsel at approximately 3.11 p.m. His Honour granted the Mother a short adjournment and invited her to commence cross-examination at 3.30 p.m. The sitting continued until 4.20 p.m. during which time the Mother conducted a largely irrelevant cross-examination. This led to his Honour shortly prior to the adjournment suggesting to her that she should concentrate on the important issues.

At the commencement of the hearing on the following morning his Honour was handed a trial plan by Counsel for the Father who had apparently had discussions with Counsel for the child representative and the Mother concerning it.

The Mother then resumed cross-examination. She appeared to attempt to raise an issue of domestic violence by the Father in relation to another person but was not very successful in doing so.

She then devoted a considerable amount of cross-examination to the Father’s gambling proclivities.

She attempted to cross-examine about an incident that involved her calling the police on 16 October 1998 that subsequently was considered by his Honour to have some significance.

Again, her cross-examination was far from illuminating in relation to this matter and quickly meandered off into a discussion about the Father driving in a Cannon Ball Run in the Northern Territory.

Some very limited cross-examination ensued about the Father becoming annoyed and having raised his fists to her and having made threats. His Honour then reminded the Mother that she only had about an hour left for cross-examination.

She then cross-examined about an altercation that took place at the home of the Father involving his father, the Mother and his niece. That was again the subject of findings by his Honour against the Mother to which we have referred.

Following the luncheon adjournment, his Honour granted the Mother a further 20 minutes to continue cross-examination. His Honour commented that with such little time left it might be best to concentrate on matters relating to M and M’s care.

Cross-examination then continued concerning sleeping patterns and the Father’s availability to look after the child and in effect she put it to the Father that the care of the child was almost entirely carried out by his mother and Ms A. When the cross-examination eventually concluded that afternoon, we think it fair to say that the Mother had barely touched upon a significant issue in the case, namely, her alleged erratic behaviour. Similarly, the issue of domestic violence had virtually disappeared.

Following the Father’s evidence, the Mother was called upon to cross-examine Constable J concerning a visit that he made to the house following her allegations in relation to domestic violence. Again, the cross-examination was largely inconsequential and related more to the fact that as a result of Constable J’s visit the relevant Queensland Welfare Department had taken steps to have the child removed from her care.

The Mother's Counsel submitted, and we agree, that the transcript reveals that the issue of a history of domestic violence was not explored in any great depth in the cross-examination of any of the witnesses. Evidence was however presented of the reporting of violence to Dr RS and of repeated applications having been made for domestic violence orders which were subsequently withdrawn.

The case against the Mother that his Honour eventually accepted was:

That she had always led an erratic lifestyle
That she had been ambivalent about her emotional attachment to the child from the time of his birth
That she suffered what Dr RS described as a histrionic personality disorder which was debilitating and pervasive and substantially impaired her capacity to attend to all of the child’s needs
That she was prone to exaggerate and give lurid accounts of events as well as being impulsive and unpredictable
That as a result her allegations about being a victim of domestic violence should be discounted, particularly as these accounts were contradictory and different at various times
That her behaviour in returning to G was inconsistent with her expressed fear of her life in being in G.

As we have pointed out, the Mother did not really address this case during her cross-examination of any of the witnesses.

Perhaps the most critical of all of those witnesses apart from the Father himself, was Dr RS.

The task of cross-examining an expert witness such as Dr RS in circumstances where the witness is asserting a personality disorder on the part of the cross-examiner is an extremely onerous one and one which was clearly beyond the capacities of the Mother.

Dr RS took the view that because she considered that the Mother was suffering from a personality disorder, then her claims of domestic violence could be discounted. As his Honour pointed out, she had had the opportunity of observing the Mother over a number of visits and also had contact with the Father and members of his family from time to time.

Her cross-examination was therefore critical from the point of view of the Mother.

Had she been represented by competent Counsel who had been properly instructed, no doubt the cross-examination would have been directed to the issue as to whether the observed symptoms might have been a reaction to a long history of domestic violence. Counsel would have no doubt drawn attention to the history as now described by the Mother and the literature, some of which is contained in the additional material that is sought to be introduced before us, to the effect that victims of domestic violence may exhibit symptoms of the type described by Dr RS as a result of having been subjected to domestic violence.

That of course did not happen.

It is true that the trial Judge made complimentary remarks on occasions throughout the trial as to the Mother’s capacity and intelligence and her ability to handle herself as an unrepresented party.

However, our examination of the transcript suggests that despite her composure she at no stage indicated any ability to put her case in a credible way. This is not a criticism of her but rather an observation as to the impossible position of a self-represented litigant in a case such as this.

Indeed, if Dr RS was correct in her diagnosis that the Mother does suffer from a histrionic personality disorder, that only serves to accentuate the difficulties that she faced in making a proper presentation of her case.

FURTHER EVIDENCE AS TO VIOLENCE

It is against this background that we turn to and summarise the further evidence that is now sought to be led. Much of it is usefully contained in the report of the psychologist exhibited to her affidavit of 11 May 2001.

The Affidavit of The Psychologist

Prior to interviewing the Mother, The psychologist had the opportunity of reading relevant documents including the transcript of the evidence of Dr RS and Dr V and a copy of the reasons of judgment of his Honour. The account given by the Mother to the psychologist is substantiated by her in her own affidavit filed 14 May 2001. She outlines a history of a highly abusive relationship with the Father.

That relationship commenced in July 1993 and by September of that year they were engaged to be married. She recounted that after the engagement the Father’s behaviour began to change and he increasingly became abusive to her and she reported to the psychologist verbal, physical, psychological and sexual abuse accompanied by severe and prolonged controlling behaviour from the Father.

The verbal abuse complained of was of a particularly offensive nature with consistent reference to the Mother as a “fucking slut” and a “whore” and with statements “that he owned her cunt” and he could have her whenever he wanted. She also complained of being constantly criticised and put down not only when they were on their own but also in front of others including the Father’s family and her friends. She also recounted a long history of physical abuse involving grabbing her around the throat and pulling her hair, biting her, particularly her nose, hitting punching and kicking her, dragging her across floors, throwing objects at her and holding a knife against her throat. It seems that some of these attacks occurred in front of the child and also included offensive sexual attacks.

She recounted incidents of psychological abuse including unpredictable rages, following the Mother wherever she was, driving past her residence, making constant telephone calls and turning up unannounced. The Mother reported that whilst she was in the Father’s presence she had to be a timid person with no opinions. She also complained that he threatened her friends or acquaintances so that they had limited contact with her, and constantly criticised her ability as a Mother, laughing at her for being stupid and reinforcing to her that no-one would believe what she said about him because he would make sure that everyone thought that she was mad.

She also complained of him using intimidating behaviour to persuade her to perform sexual acts in exchange for more contact time with her son. She said that after sex with the Father, she was often allowed to have contact with her son during the week in the afternoons.

She recounted that he would use weapons to threaten her including the pointing of a gun at her head and a terrifying incident that occurred when she was 8 months pregnant when he threatened her with his rifle.

She reported a wide range of sexually abusive assaults and the psychologist commented that it was in this area that she reported the most severe and constant form of abuse. After sexual relations, the Mother deposed that the Father almost always left the room and usually told her to “fuck off”. He would force her to have sex which was extremely rough. He would often hold her around her throat or pull her hair during sexual intercourse. She was often too afraid to say “no”. He also forced her to watch pornographic videos whilst having sex and would often engage in sexual acts that parallelled those on the video.

She said that sometimes she did say “no” and that not infrequently he would then rape her, tearing her clothes off in the process. She said that she was also forced to help him masturbate or to perform fellatio in front of the child.

She reported increasingly controlling behaviour from the Father commencing in 1994 and escalating in frequency and severity during the relationship which she described as “[the Father] checking her”. This behaviour usually took the form of the Father aggressively, grabbing her breasts and with one hand around her throat pushing his other hand down her pants and placing a finger or fingers into her vagina and then smelling his fingers. She said that this was his way of checking if she had been having sex with anybody else. She said that these attacks were unpredictable and increased in violence in the later years of the relationship including one incident of “checking her” in front of one of his friends.

She also complained of controlling behaviour whereby she was required to precisely account to him for her whereabouts and to whom she had been talking. He was not happy for her to maintain contact with any of her friends and was verbally rude and abusive as well as aggressively threatening to her friends.

She said that on the other hand he was normally charming to her parents which prevented her from telling her family what was really happening, as she thought that they would not believe her. She also said that he controlled her appearance in public by dictating how she would behave with him and demanding that she dress the way he wanted and that she wear her hair the way he liked.

She told the psychologist that she believed and to some extent still believed that the Father owned her and that she must behave as he told her. She said that she had been conditioned by him in this way. Due to her fear of him, she often followed his instructions and she says that she feels he still has the ability to control a significant amount of her behaviour and that this is particularly the case in relation to contact with the child.

She said that she became increasingly isolated in G. She limited the contact she had with other people because she was afraid to go out and many of her friends stopped coming over because of the Father’s aggressive and extremely jealous behaviour.

The psychologist commented that the disruption of the Mother’s previous emotional attachments had the effect of creating greater dependence by her on the Father, thus exacerbating the abuse/victim dynamic in the relationship. The Mother found that as she received no satisfactory response in relation to requests for help to police, health professionals and others, she developed significant feelings of helplessness and relied upon developing her own behaviours to keep herself safe.

The psychologist commented that many of these behaviours, if observed outside the context of prolonged domestic violence, may be interpreted as purely manipulative but that these behaviours are highly consistent with the adaptive behaviours women display within domestically violent relationships.

She considered that many of the behaviours described by the Mother are evidence of her living in a hyper-vigilant state.

The Mother repeatedly said during the interviews that she often thought that there must have been something wrong with her to stay with a man who was so abusive to her and that for a long time in the relationship, she felt that it was her fault if he was angry with her because she had not done something like having his dinner cooked at a certain time.

The psychologist observed that over time the Mother has internalised a self image projected to her by the Father. She also felt ashamed of many of the things that occurred in the relationship and that she worked very hard to cover up the violence in it.

The psychologist expressed the view that as a result of the prolonged and severe nature of the abuse and violence experienced by the Mother she developed significant and enduring psychological symptoms which assisted her to cope with the abnormal levels of stress she was experiencing and helped her to avoid further abuse and threats to life. She commented that these symptoms were often observed in a recognisable pattern in women reporting repeated severe, physical, sexual and psychological abuse by their male partners and has been named “The Battered Women Syndrome”. She described this syndrome as a sub category of post traumatic stress disorder which reflects the negative consequences of trauma and stress in individuals exposed to traumatic events outside the range of normal human experience.

She deposed that the impact on the Mother included nightmares, intense psychological distress, efforts to avoid thoughts, feelings or conversations associated with the trauma, or an inability to recall important aspects of trauma incidents, outbursts of anger, difficulty concentrating and hyper vigilance.

She also expresses the opinion that it is not uncommon for women who present with symptoms of post traumatic stress disorder to be diagnosed by health professionals as possessing personality disorders. She deposed that research has shown that many health professionals are unable to perceive the seriousness of domestic violence and demonstrate a lack of awareness of the high psychological costs to a woman attempting to survive the abuse. She deposed that succinctly put, the most significant difference between a diagnosis of a personality disorder and post traumatic stress disorder is that a personality disorder is indicative of some innate deficiency on the part of the woman and therefore labelling of the woman with the implication that she is somehow at fault for her own circumstances, whereas a diagnosis of post traumatic stress disorder is more concerned with identifying the woman’s behaviour as a collection of thoughts, feelings and actions that are an understandable reaction to repeatedly frightening and traumatising experiences. She further deposed that while the Mother’s behaviour had been described by Dr RS as “histrionic” and “highly demanding” and evidence of a personality disorder, an alternative interpretation could be that these behaviours were the Mother’s way of “testing unconsciously” the boundaries of the health professional to test that person’s commitment to her.

She deposed that this is a form of self protective behaviour displayed by women who have been significantly abused as they need to know if the health professional will believe them before they begin to reveal the full extent and nature of the abuse.

She deposed that another significant difference between a personality disorder and post traumatic stress disorder is that although women do experience residual negative effects from being exposed to violence the symptoms significantly subside given appropriate support and the development in the woman of feelings of safety and empowerment.

She pointed out that it is not uncommon for women who have been the victims of domestic violence to take a lengthy period of sometimes years to recount their story and that they may not be prepared to discuss their experiences with people that they do not perceive as supportive.

The psychologist deposed that consequently it is not uncommon for battered women’s presentations to be described as inconsistent, superficial, hysterical, or untruthful.

The psychologist expressed the view that in the case of the Mother, she had the added stress of representing herself in court and confronting both the Father and health professionals whom she experienced as non-supportive and the psychologist considered that the Mother's ability to effectively represent herself would have been seriously compromised.

The psychologist also expressed concern about the effect upon the child of the violent incidents described by the Mother to have taken place in his presence.

The psychologist’s conclusion was that the Mother had reported a pattern of severe and prolonged domestically violent behaviour perpetrated against her by the Father. She deposed that the impact of the abuse as described by the Mother and observed by her during the assessment process was congruent with a diagnosis of post traumatic stress disorder.

She deposed that the Mother presented as a woman who was still to some extent psychologically enmeshed in a dysfunctional relationship with the Father and continued to feel controlled by him. She expressed the view that what she described as the current shared custody arrangement between the Father and the Mother serves to increase the Father’s ability to control the Mother but unfortunately the child has the potential to become increasingly harmed by the abusive dynamics continued to be perpetrated by the Father towards the Mother.

Appended to the psychologist’s affidavit and report are the research materials upon which she relied and to which she referred in swearing her affidavit.

The Affidavit of The Social Worker

The other professional evidence that was sought to be introduced was an affidavit of a social worker … sworn 14 May 2001. She is a professional social worker who has worked from June 1991 to the date of swearing her affidavit at the Women’s Legal Service as a social worker specialising in domestic violence. In her report appended to the affidavit she discusses the definition of “domestic violence” and the effect of domestic violence on women’s behaviour. She formed the opinion that an assessment of domestic violence would appear warranted.

The social worker also expressed a view about the behaviour of the Mother that had been described at trial as being consistent with histrionic traits or histrionic personality disorder. She discussed such behaviour and the matters raised by the Mother’s doctor, Dr RS, and said she considered that the descriptions were consistent with the effect of domestic violence.

She expressed the view that women affected by domestic violence not only receive unjust treatment from the perpetrator but also from a range of helping organisations that they attempt to access. She expressed the view that the opinion of Dr V was more consistent with the history of domestic violence. She also discussed issues such as the cycle of violence in relation to the Mother’s expressed fear upon returning to G and considered that it was plausible that whilst her fear may been present, her fear for her child’s safety and well being may have far outweighed her fear for her own safety at particular points at time. She said that the ambivalence displayed by the Mother was characteristic of women affected by domestic violence particularly where there are children. She said:
“They often feel trapped because the abuse continues and yet they cannot rely on the authorities to take protective action. Whilst I have not discussed these circumstances with Ms T her concerns about wanting to care for him and being able to care for him would be consistent with her fears of being able to cope with the mental stresses emanating from the dynamics of domestic violence and the powerlessness associated with attending to M’s welfare under these conditions.”

She also expressed concerns about the effects of M having witnessed domestic violence.

Her conclusion was that there had been a significant omission in that information concerning domestic violence was not put before the Court. She said that with an analysis of domestic violence a very different scenario would have been painted which would have led to a different course of questioning and possibly a very different result.

The social worker also exhibited a large number of research materials to her affidavit.

The Further Affidavit of the Mother

The affidavit of the Mother which she seeks to have admitted gives a detailed account of the matters referred to by the psychologist. This affidavit was obviously prepared with legal assistance and, if accepted, places an entirely different complexion upon the nature of the case before his Honour and makes it clear that the issues for determination would have been radically different to those in fact determined by his Honour.

In her affidavit she also refers to the difficulties that she experienced in self-representation. She refers to legal aid funding having been withdrawn after the interim hearing on 1 November 1999 and that Legal Aid Queensland made a final decision not to continue funding her case in January 2000 because there was a child representative involved.

She described the trial process as exhausting and exacerbated by the fact that she worked through most of the nights in preparation for the next day. She deposed that she was very nervous about having to speak in such an unfamiliar environment and that she found the first day particularly baffling because of the legalistic discussion about affidavits, which documents the parties were allowed to rely upon, objections, trial plans etc.

She deposed that she did not know how to plan a cross-examination and she never understood how to take objection to any parts of affidavits relied upon by the other parties. She deposed that she was nearly always left out of the out of court discussions between the legal representatives. She deposed it took most of the trial for her to understand the difference between subpoenaed material and exhibits despite the trial Judge’s attempts to explain this to her. She also described difficulties in relation to access to subpoenaed documents.

She deposed that she felt fearful in the courtroom because she had to cross-examine the Father and that he was in the court all the time watching while she cross-examined his family and other witnesses.

She deposed that she felt unable to properly cross-examine the Father about domestic violence including the nature and severity of it because she was at a loss about how to effectively and safely do so. She deposed that although she asked some questions she did not know how to deal with blatant denials and that she was totally unable to cross-examine about the sexual violence that had been perpetrated upon her because of her fear, shame and embarrassment about revealing those matters to the people in court. She was also concerned about her future safety.

She deposed that it was extremely difficult for her to cross-examine Dr RS because she sensed from her interactions with her that Dr RS did not believe what she had told her. She deposed Dr RS’s negative attitude was obvious from the evidence she had given by the time cross-examination had commenced. She deposed she really had no idea how to proceed and be effective, that she was particularly confused by the medical terminology used, and that she had no real idea of what was being suggested about her at times.

She also referred to an affidavit from Mr FP that she had filed in support of her case on 27^th January 2000 which deposed to a significant amount of the Father’s stalking and other aggressive behaviour towards her. She says that on the evening of 27^th March 2000, Mr FP informed her that he had been threatened because he was going to give evidence on her behalf and that he believed that the Father was behind the threat and was extremely fearful about giving evidence. He later told her that he would be at risk if he was to give evidence and she accordingly withdrew his affidavit.

She deposed that she did not know how to bring to the Court’s attention in a safe way the reason why the affidavit was withdrawn.

She also gave evidence of her difficulties because of her failure to understand the differences between evidence in chief and cross-examination and that therefore when her evidence in chief commenced on 31^st March she had nothing prepared to say in answer to the new evidence which had come to the attention of the Court during the trial.

She deposed that she was particularly hampered in trying to give evidence about the violence and abuse in that many aspects of the abuse, including its nature, severity and frequency did not form part of her evidence at the final hearing.

She deposed that she had attempted to bring the matters to the Court’s attention through her affidavit of 22 March 2000 but that the majority of it was struck out.

She deposed that she also found it difficult to give oral evidence about these matters and that it was not easy for her to talk about violence and particularly sexual violence and conduct and that she felt ashamed and degraded and that it has taken her a long time to be able to talk about such things at all.

She deposed however, that she did tell Dr V about some of the violent incidents and he detailed those in his report. She deposed that she did not think that she had to repeat these allegations again in her affidavit for them to become evidence. She deposed that she approached the trial with a feeling of hopelessness and powerlessness and that part of her was scared to raise issues of violence because she was convinced that she would lose and thought it futile to put her family through the heartache of actually hearing what she had lived through for so many years.

Other Affidavits That The Mother Seeks to Admit

Additional evidence was also sought to be led in the form of an affidavit by the Mother’s sister, … . She confirmed allegations dating back to November 1993 of domestic violence. She said the Father admitted to having hit the Mother and to making threats to kill her. She observed a pattern of the Father being extremely abusive and later leaving and returning and apologising for his behaviour, declaring his love and showing his remorse. She confirmed that he was often verbally abusive towards the Mother and was abusive publicly and even in front of her own family. She said that the Father had a very poor opinion of women generally.

She referred to separations that had occurred during the relationship when the Mother came to stay with her and to the fact that during these periods the Father would telephone continuously looking for the Mother and wanting to speak to her. She deposed that many of the calls were made minutes apart and that he would sometimes ring up to 24 times a day.

She deposed that the Mother would often be dropped off at her house with no money. She referred to an incident where the Father indicated that he was coming with a gun and that he was going to “blow” her “through a wall”. She deposed that this was the first occasion that her life had been threatened by the Father but that it was not uncommon after this time for him to continue to make threats to her life or her family’s life.

She deposed that during the Mother’s pregnancy the Father often referred to her as suffering from post-natal depression. She also recounted an occasion when the Father threatened her father. She also gave evidence as to his behaviour at handovers of the child. On one occasion she heard the Father screaming over the phone:

“Get that kid to gym or you’re fucking dead”.

The Mother's mother, Mrs FT, in an affidavit filed 14 May 2001 gives evidence as to threats being made by the Father to the Mother shortly after the couple’s engagement. She deposed that during the course of the relationship she observed visible bruising on the Mother on at least 10 occasions and had seen obvious finger marks around her neck and on her upper arms and sometimes on her legs. She deposed to the Mother arriving at home in June 1995 with a split lip and at or about this time she saw that there was something wrong with the Mother’s nose. She deposed that the Mother became uneasy and evasive if the bruising was mentioned.

The father of the Mother, Mr CT in an affidavit filed 14 May 2001 also refers to abusive behaviour on the part of the Father extending over many years and of having seen her with scratch marks on her arm after being with the Father the previous night. He also confirmed an occasion when the Father behaved in a threatening manner towards him and described a conversation that he had with the Father in December 1999 when the Father said words to the effect:
“I have parked outside her flat and I have been watching her. You should
see what she is up to. If you come out to G I will pay for the hotel and you can come and sit outside and see for yourself.”

He described the Mother as being in fear on many occasions during the relationship.

Finally, as noted previously in this judgment, the Mother sought to rely upon the affidavit of Ms AML filed 14 May 2001 which exhibited a statutory declaration by one Mr WSH as to an approach that had been made to him to frighten Mr FP and prevent him from giving evidence. Mr WSH’s statement also alleges stalking behaviour on the part of the Father.

SHOULD THE FURTHER EVIDENCE BE ADMITTED?

Applying the principles that have already been discussed, it is apparent that most if not all of this evidence would have been available at trial. However, given the background to the matter and the difficulties under which the Mother laboured at trial we think that it would be unreasonable to give any significance to this fact.

In CDJ v VAJ (supra) at 104, the majority pointed out that the critical factor in the exercise of the discretion to admit additional evidence is the subject matter of the proceedings with which the appeal is concerned and at paragraph109 their Honours observed that the principal purpose of s93A(2) is to give to the Full Court a discretionary power to admit further evidence where that evidence if accepted, would demonstrate that the order under appeal is erroneous.

In our view, the admission of the further evidence would require a rehearing of the application. We are satisfied that the further evidence is credible and that, if accepted, it would have produced a different result if it had been available at trial.

We are conscious that the trial Judge did not accept the Mother's evidence in relation to domestic violence but, in the circumstances of this case, that is not, in our judgment, a reason why leave should not be granted to the Mother to adduce the further evidence.

The gravamen of the Mother's case, however, as it is now formulated, is that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence thereof and because, on his Honour's view, the Mother suffered from a personality disorder it was submitted on her behalf that his Honour was thus led into making negative findings against her, and in particular against her credibility.

It is clear that her additional evidence is also corroborated by witnesses that his Honour found to be credible, namely the Mother's sister and Mother.

The expert evidence is in itself partly dependent upon the Mother's credibility although it does cast additional light upon that issue. It also casts doubt upon the evidence of Dr RS that was accepted by the trial Judge. We see no apparent reason why the expert evidence would not be accepted.

In our judgment, the interests of justice require that leave be granted to the Mother to adduce the further evidence notwithstanding that the result will be a new trial and the impact thereof on the child and the parties.

The other additional evidence as to alleged threats to a witness, although troublesome is neither in a form or of such a nature as would necessarily affect the outcome of any trial.

THE APPELLANT'S CRITICISMS OF THE CHILD REPRESENTATIVE AND THE TRIAL JUDGE

Having regard to the Mother's submissions concerning the alleged shortcomings of the child representative and the trial Judge, we consider it appropriate to make some brief observations on these matters.

The Responsibility of the Child Representative

The Mother argued that the child representative failed in his duty to place the issues of domestic violence clearly before the Court. The child representative did not appear at the hearing of the appeal.

We do not agree that it is part of the child representative’s duty to investigate and present the case for one of the parties. Indeed to have done so in the present case would have compromised the child representative's neutrality.

The Trial Judge's Conduct of the Hearing

We also note the criticism of his Honour’s alleged failure to further inquire into the issue of domestic violence. Although proceedings involving the welfare of children are not strictly adversary in the usual sense (see In re P (a child); Separate Representative (1993) FLC ¶92-376 and the cases discussed therein) they are not to be equated with inquisitorial proceedings. The Court and its procedures are simply not equipped to conduct inquisitorial proceedings which would have been required of his Honour if this criticism was to be accepted.

OUTCOME

Given the findings of the trial Judge, the further evidence if tendered before him and accepted by him was likely, in our view, to have produced a different result. Further, the best interests of the child require a rehearing, notwithstanding the impact upon the parties and the child of that rehearing. Accordingly, it is appropriate to admit the further evidence. As a consequence, there must, in our view, be a rehearing of the application. We thus propose to allow the appeal, set aside the orders of the trial Judge and remit the application for rehearing.

In the circumstances, it is not necessary for us to consider the specific grounds of appeal relied upon by the Mother. We are of the opinion, however, that his Honour conducted a difficult trial with fairness and competence.

COSTS OF THE APPEAL

At the conclusion of the hearing of the appeal, no submissions were made in relation to the costs of the appeal. We will give directions for the filing of written submissions by either party in relation to the costs of the appeal.

ORDERS

We therefore order:-
1. That leave be granted to the appellant to adduce further evidence.

2. That the appeal be allowed.

3.That the orders made by the Honourable Justice Buckley on 11 August 2000 be set aside and in lieu thereof it be ordered that the parties' cross-applications for residence, contact and specific issues be remitted for rehearing as a matter of urgency before a single Judge.

4.(a) That either party be at liberty to make an application by way of written submissions within 14 days of the date hereof in respect of costs incurred by him or her in relation to the appeal.

(b)That the other party have a further 7 days in which to make written submissions in answer thereto.

(c)That the first mentioned party have a further 7 days in which to make any written submission in reply thereto.

(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the previous 200 numbered paragraphs are a true copy of
the Edited reasons for judgment delivered by this Honourable Full Court.

Danny Sandor
Senior Legal Associate to the Chief Justice

ADDITIONAL REASONS OF NICHOLSON CJ

In addition to the joint reasons for judgment which have been delivered by this Court, I am of the view that a number of further matters warrant additional mention notwithstanding that they were not the subject of argument at the hearing of this appeal.

LEGAL AID

I think that this case highlights a serious problem affecting the administration of justice in family law proceedings.

This case highlights the fact that, as also occurs on occasion in the area of criminal law, women who have suffered serious domestic violence may be unable to present their cases unaided in family law proceedings. The present legal aid system does not appear to be able to cope with these problems.

The judgments of the Supreme Court of Queensland Court of Appeal in The Queen v Robyn Bella Kina (29 November 1993, sourced from Butterworths On Line, BC 9303391) highlight how even the provision of legal representation may not be sufficient in some cases. Ms Kina was convicted of murder in circumstances where evidence of a life dominated by physical and sexual violence and humiliation was not presented that may have led to her acquittal either entirely or on the charge of murder. Their Honours held the trial had miscarried. The President and Davies JA said in a joint judgment:

"The legal system for the most part works well, but we must not shut our minds to the reality that sometimes matters go awry and produce a miscarriage of justice. Nor, when that occurs, should we shrink from a frank acceptance of what has occurred and an equal openness and readiness to put it right. In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (I) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice. In the exceptional events which occurred, the appellant's trial involved a miscarriage of justice. Accordingly, the appeal should be allowed."

The Family Court for its part, operates a system that was designed and predicated upon the proposition that persons would normally be represented in family law proceedings. We now have a system where, for nearly 40% of people, that is not the case.

While the Family Court is moving to alter its procedures to make them more readily understood by self represented persons, the Full Court pointed out in Re F (supra) that it is just not possible to provide a “level playing field” in cases such as this to self represented persons and as this Court's joint reasons have indicated, the issue of providing procedural fairness creates great difficulties.

At the very least, a self-represented person’s lack of capacity to present aspects of their case in a particular manner often does not lend itself to the drawing of the adverse inferences that are usually drawn when parties are represented.

Aspects of the present case are illustrative of this. His Honour drew an adverse inference from the Mother’s failure to raise in her affidavits, a coherent history of her allegations of domestic violence. The additional material before us provides a plausible explanation why such an inference should not be drawn.

Similar observations can be made about the Mother’s failure to cross-examine about these incidents. It is therefore almost impossible to give any operation to the rule in Browne v Dunne (1894) 6 R 67.

His Honour formed very favourable conclusions about the Mother’s parents and sister and their veracity as witnesses. They have now sworn affidavits that support the Mother’s allegations of violence.

While I express no concluded view, the most probable explanation for their failure to give evidence about these matters is either that they were not asked or failed to consider that those matters were relevant. It may also have been that the Mother's state of mind led her to encourage their silence or prompted them to silence. The benefit of legal representation would have provided an opportunity to address each of these scenarios.

INTERNATIONAL INSTRUMENTS

Again, although it was not the subject of specific argument, I consider that it is of some relevance to consider the effect of international instruments to which Australia is a party as a case such as this.

While treaties do not form part of domestic law unless specifically incorporated, it is apparent from the High Court's decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 that regard can be had to them is circumstances where this is not excluded by the relevant domestic law. Upon this basis, I think it is appropriate to refer to two relevant instruments which Australia has committed to. The denial of legal aid in the circumstances seen in the present case appears to infringe the practical enjoyment of rights which are meant to be assured under both the Convention on the Elimination of Discrimination Against Women 1981 (CEDAW) and the Declaration on the Rights of Disabled Persons 1975 (DRDP).

Looking first to CEDAW, I note that Article 2 sets out a broad obligation, namely:

'States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and to this end undertake:
…
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;"

Article 15(1) enshrines the principle of women having "equality with men before the law" and provides in paragraph (2) that:

"States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity."

Family law is the specific concern of Article 16 which states inter alia:

"States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations…"

In respect of the DRDP, I would draw attention to Article 11 which states:
"Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account."
These matters reinforce my concerns about the administration of justice in this area and I feel it appropriate to say so in the context of this case.

In the present case I think that the denial of legal aid or representation to a person in the circumstances of the appellant, may constitute a breach of obligations created under those instruments.

The “Battered Woman Syndrome” is now well-recognised internationally (see the decision of the Supreme Court of Canada in R v Lavallee [1990] 1 SCR 852) and expert evidence concerning the syndrome has been accepted "in all Australian states and territories and in a range of contexts" (see Julie Stubbs and Julia Tolmie (1999) 'Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome' Vol. 23 No. 3 Melbourne University Law Review 709 at 720 and the cases cited there).

While there is a question of fact as to whether the Mother is such a victim, its elucidation was rendered impossible by her lack of representation in these proceedings. It is therefore difficult to see how her rights were protected as required by CEDAW Article 2(b)(c). Similarly it is difficult to see how she was given the opportunity to be equal before the law with men or that she had the same opportunities as men to exercise her legal capacity in civil proceedings, which these were.

I consider that her lack of representation involved discrimination against her in these proceedings that is of serious concern. No doubt the same could be said in respect of a man if the circumstances were to be reversed, but there are fewer examples of battered men in male/female relationships.

Finally, on any view, the Mother would fit the definition of a "disabled person" for the DRDP in that she, in his Honour’s view, suffered from a histrionic personality disorder or, on the basis of an alternative assessment, suffered from a post traumatic stress disorder.

The joint reasons of this Court have already commented upon the Mother's difficulties in dealing with the evidence of Dr RS and I am of the view that in general, the Mother's lack of proper representation amounted to a breach of Article 11 of the DRDP.

I do not suggest that the fact that these international obligations were breached in this case is determinative of the matter, but I consider that it lends strength to this Court's conclusion that there should be a new trial.

Further, I am of the view that it also suggests the need for a re-think by Government and legal aid authorities as to the sort of cases in which legal aid should be granted.

I certify that the numbered paragraphs 201 to 226 (inclusive) are a true copy of
the Edited additional reasons for judgment delivered by the Honourable Chief Justice

Danny Sandor
Senior Legal Associate to the Chief Justice

[2001] FamCA 1147

29 October 2001

Key Legal Topics

Areas of Law

Administrative Law

Family Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Expert Evidence

Standing

Breach

Remedies